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Tuesday, February 21, 2012

Insanity, Law, and the Pedophilic Brain Tumor

Given the subject of last month’s Journal Club meeting and the current poll, I wanted to take a moment to talk about issues of volition, cognitive impairment and impulse control in law, especially as they relate to sex offenses, and the way neuroscience research is beginning to impact these relationships. I am going to consider the following as a general question, rather than analyzing the details of the particular case:[1]

If a man is discovered to have committed sex crimes against children due to uncontrollable pedophilic urges, and those urges were proven to be caused by a brain tumor, is he guilty of his crimes?

As I write this, votes on the blog have “not guilty” beating “guilty” by 32 to 25. Honestly, the number of “not guilty” votes surprised me a bit, as there really isn’t a question about whether or not he committed the crimes. As I thought about it, I realized that perhaps for some the question of guilt isn’t whether he did it, but whether or not he should be held responsible, and then, if responsible, whether he should be punished. How we answer those questions depends on, one, our understanding of what it means to be responsible under the law, especially where neurological impairment is involved, two, what the purpose of punishment is, and three, the unique position of sex offenders, particularly pedophilic ones, within the United States. For most of us reading this poll, I am willing to bet that the question of this man’s responsibility comes down to a sense that he is probably legally insane. Insanity in the law is distinct from insanity in a psychiatric sense, in as much as legislators and judges are not held to psychiatric standards when creating law.[2] “Legal insanity” may refer to a declaration of: incompetence, not guilty by reason of mental disease or defect, or a danger to self and others. The first standard is used to determine whether someone can participate in legal proceedings, the second can be offered as a criminal defense, and the third is used as a standard for involuntary or civil commitment (sometimes called a psych hold or “sectioning”.) A declaration of incompetence or a civil commitment would apply if the tumor, or its removal, caused significant cognitive impairments beyond the uncontrollable urges. In either case, he might never be convicted of the crimes in question, and therefore would never be declared “guilty,” but would be subject to lifetime monitoring and/or institutionalization to prevent re-offending. Whether he would be eligible to plead not guilty by reason of insanity is more complicated. The definition of insanity in this portion of the law may mean cognitive, emotional, or behavioral impairment, depending not only on the type of offense and the context under which it was committed, but also the jurisdiction, the admissibility of scientific evidence, and the timeline of discovery.[3] (This fact alone sometimes makes mental health professionals, behavioral biologists and neuroscientists want to tear their collective hair out.)

Actus non facit reum nisi mens sit rea? What is this, the dark ages?!

In jurisdictions that allow the insanity defense, there are two major standards for determining legal insanity: the cognitive test and the control test. The cognitive test, where the standard is whether the defendant knew right from wrong, is the most common. Having strong urges to commit sex acts with children is not, in and of itself, enough to pass the cognitive standard, and thus in most jurisdictions the insanity defense would not be a good option.[4] The control test, also known as the irresistible impulse test, is rarer, and allows for a person to enter a plea of insanity if they can prove that they could not control their behavior, even if they knew what they were doing was wrong. Most jurisdictions have abandoned this standard over the last 30 years since, as one lawyer argued in 1983, psychiatry and psychology had found “no objective basis for distinguishing between offenders who were undeterrable and those who were merely undeterred.”[5] Recently, neuroethics and neurolaw scholars have argued for increased use of the control test. Most of these arguments center on the fact that it is possible, due to discoveries in neuroscience, to obtain admissible scientific evidence of frontal lobe dysfunction and impaired impulse control.[6] These authors argue that it is unjust to hold someone with such an impairment to be more responsible for his or her actions than someone with cognitive impairment, as this is “tantamount to saying that some brain lesions are morally superior to others.”[7]

Morally superior brain tumor.

What makes the case of the pedophilic brain tumor so interesting is that many of the authors arguing for a neuroscientifically-based control standard draw a distinction between compulsive disorders and impaired impulse control. Pedophilic urges, according to Redding, like kleptomania, pyromania, and compulsive gambling, are “compulsions, extreme desire, or inner cravings, not the inability to inhibit highly impulsive, reactive episodic behavioral responses due to substantial FLD [Frontal Lobe Disorder], a very different kind of impairment.”[8] The control standard, to use a metaphor, is not a matter of how fast the car is going when you try to stop it, but whether your braking mechanism is functioning properly. It is unclear whether the control test for insanity, as it is interpreted here, applies in a case where there is a tumor that creates an impulse control disorder by strengthening impulses rather than by causing a deficit in control. Was the strength of the impulses caused by his tumor so great that no one could have resisted them? If that is the case, further research in this area may challenge the line Redding draws between compulsions and inability to inhibit, and may result in a change of the control test.

As of right now, though, it is very unlikely that this man could mount a credible not guilty by reason of insanity defense. In the end, the question of legal insanity, although interesting, is probably not relevant. The most likely outcome in a case like this would be a guilty plea and then an argument for diminished capacity as a mitigating factor. He would receive a very reduced sentence compared to someone who committed the same crimes without a brain tumor, but it would not make him not guilty of his crimes. Whether or not this outcome appeases your sense of justice depends on whether you think the purpose of punishment is to prevent future crimes (which seems unnecessary if removing the tumor eliminates the urges) or if the purpose is retribution (which, given the psychological and social damaged caused by sex crimes to children, might be an impossible standard to meet.)

This brings me to the final point of interest. Sex crimes against children are generally seen as so egregious that were the man with the brain tumor to go to trial and have his guilt determined by a jury, it is likely that the fact that he ever had pedophilic desires, and the fact that he harmed children, would outweigh any evidence of medical causes.[9] The crime committed was so horrible and its impact so wide, restoring the community's sense of moral order and safety requires punishment that is both public and severe. [10] The special status of sex offenders has led to the creation of unique laws in the United States. There is actually a subset of civil law that allows for the indeterminate civil commitment of violent sex offenders, after the completion of their sentences, based on a determination of mental abnormality that relies in part on the volitional control test. This civil commitment process, used for a legal class called “sexually violent predators,” would likely not apply in the case of the man with the brain tumor, simply because in his case the cause of the loss of control and the pedophilic urges could be quantified and effectively treated. But let’s just think about that for a second: that means this is a law that exists primarily to deal with cases in which there is evidence of mental illness causing both loss of control and the urge to commit sexual crimes, but neither can be fully quantified or effectively treated. And it also means that, according to the law, sexual impulse control disorders are real enough to justify lifetime civil commitment, but not real enough to use as a defense in criminal court. Guilty, or not guilty?

[2] This distinction that has been upheld by the Supreme Court, see Kansas v. Hendricks.

[3] And I am not even mentioning the "automatism defense," which is allowed in cases where the crime was determined to be reflexive or unconscious.

[4] Although this does not necessarily stop defense lawyers from trying, most notably in the trail of Jeffrey Dahmer. See: Dennis M. Doren, "Inaccurate Arguments in Sex Offender Civil Commitment Proceedings," The Sexual Predator: Law and Public Policy, Clinical Practice, ed. Anita Schlank, vol. 3 (Kingston, New Jersey: Civic Research Institute, Incorporated, 2006) and this article on an expert witness.

[5] Richard J. Bonnie, American Bar Association Journal 69.2 (1983): 196. For general arguments against the control test, see the work of Stephen J. Morse.

[6] Richard E. Redding, "The Brain-Disordered Defendant: Neuroscience and Legal Insanity in the Twenty-First Century," American University Law Review; Penney Steven, "Impulse Control and Criminal Responsibility: Lessons from Neuroscience," International Journal of Law and Psychiatry; and Adam Lamparello, "Cognitive Neuroscience and Involuntary Confinement: The Model Statute", available at SSRN.

[9] For some excellent research on the impact of different factors on jury decisions about sex offenders, see Cynthia Mercado, Brian Bornstein and Robert Schopp, "Decision-Making About Volitional Impairment in Sexually Violent Predators," Law and Human Behavior 30.5 (2006). [10] For more on sex offenders and expressive punishment, see: John Steele, "Seal Pressed in the Hot Wax of Vengeance: A Girardian Understanding of Expressive Punishment" Journal of Law and Religion 16 (2001) 35.

8 comments:

Cyd, this write-up encourages us to engage ethical questions that oft crop up in conversation or in the media in a much more thorough and responsible way. This survey question is a tricky one - indeed - that begs a certain re-evaluation (or justification?) of gut responses; here, you draw out a number of good points for deliberation, including how we relate (or conflate?) moral accountability, deterrence, and punishment. How great it is that this blog provides a forum for discussion about these pressing issues.

As mentioned above, this question brings out a number of fundamental problems with the way we think about crime and punishment. In fact, perhaps the reason that there was so much division on the question of "guilty" or "not guilty" is precisely because modern science is putting the lie to these terms. Our legal system is based entirely on guilt and responsibility as hypothetical constructs, and on punishment as the appropriate response; but when we come to be able to identify concrete, *correctable* causes, these constructs become too weak to be relied upon.

If we reframe legal questions without these constructs, situations like the one discussed above become more clear. Instead of asking whether he is "responsible," perhaps we should ask only if he caused the crime through his actions; and instead of asking if he should be "punished," perhaps we should ask what we should *do* about it.

With most crimes, there are no discreet, correctable causes. In these vast majority of cases, segregation from society and rehabilitation are called for (currently, the favored form of rehabilitation is negative punishment). In a small number of cases, psychiatric intervention may be seen as a possible correctable cause (those cases that might be called "insanity"). And, in one very special case, a medical intervention can address the correctable cause. Whether, beyond this medical intervention, additional rehabilitation (i.e. negative punishment) is called for, is a better question than whether the subject is "guilty."

Thank you both for your comments! James, you bring up an interesting point about the rehabilitative function of punishment. Asking about the possibility of rehabilitation and its success in any particular case might give us clearer answers than simply asking about guilt. However, what if rehabilitation was not the only point of punishment? How does that change our conceptions of responsibility and its importance?

For example, according to different theories of justice, punishment may be retributive, restorative, expressive, or it may exist for social protection. All of these theories will give different answers when we ask what we should *do* in response to any particular criminal action. In these models, the additional punishment someone receives would be done in order to appease a social sense of wrong, and segregation from society would not be a form of negative punishment, but might be done for the protection of the community.

For example, in US districts that allow the civil commitment of violent sex offenders, the reason for this civil commitment was originally (a very loose concept of) psychiatric intervention. However, people (including the APA) raised the objection that most of these individuals were not actually treatable, and Supreme Court held that it was acceptable to continue to hold these individuals, even if they did not respond to any current treatment modalities, because the community needed to be protected from them. In this case, the function of law is not rehabilitation. (Although I am fudging a bit here, because this is a civil matter, not a criminal one; in the US holding criminals based on crimes they might commit in the future is preventive detention and generally not ok.)

Let me echo everybody else and say: great post, Cyd. You made me reconsider how I was going to vote in the poll, and you nicely summed up some legal complexities that I didn't even know existed.

I think you might be missing a "without" in your sentence summing up reference number 7, though, if I'm understanding their argument correctly.

Now that I've read the post, I guess I'll have to say the man with the tumor is guilty. Like James, I have my doubts about how useful that is, but maybe I'm just afraid an egg-shaped tumor that I don't know about will make me guilty of something terrible.

Hey David,Thanks for reading! Welcome to the world of knowing entirely too much about the insanity defense.

The phrasing in my summary for note 7 isn't entirely clear, but I don't think there is a typo: basically, the issue is that lesions in certain parts of the brain (those known to cause cognitive disorders, as defined legally) are admissible as proof of mental disease or defect, but others, such as those causing impulse disorders, are not. Thus, impaired cognition is "morally superior" to impaired impulse control. Does that make more sense?

If you do have an egg-shaped tumor, remember: location, location, location.

Hi Cyd--thanks for clarifying. I got it now. And I definitely don't want to try and figure out which location for my egg-shaped tumor will render me most morally superior to other people with egg-shaped tumors.

I guess this also raises the question of whether understanding the causal mechanisms for certain behaviors should really alter our responses to them. In this case it is easy to consider the tumor "foreign" and a "disease" whose removal fixes the behavior - voilà, a cure.

But what about the thought experiment of a neuroscience-fiction future in which the brain circuitry of sexual desire or impulse control is better understood, and we discover individuals who have "weaker" impulse control mechanisms in their brains or are neurologically wired with socially unacceptable desires? Are these like the tumor - medical intervention restores acceptable behavior and removes some portion of the individual's responsibility? Or are these merely biological descriptions of the "moral weakness" or "perversion" that we were happy to judge and punish as black-and-white morality before the objective prism of science turned everything to shades of gray?

So I guess this raises very interesting moral questions both in terms of how we define "guilt" and "responsibility" but even for how we define "disease".

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